The Shah Bano Controversy: A Case Study of Individual Rights, Religious Tolerance, and the Role of the Secular State

Since Independence, the Indian government has struggled to achieve political modernity within acceptable religious boundaries. Religious diversity in India necessitates governmental sensitivity toward sometimes opposing principles, and yet, when religious practices threaten an individual’s access to the rights of citizenship, a secular government has to intervene. The Indian Supreme Court case of Mohammad Ahmed Khan v. Shah Bano Begum and others brought to the forefront issues of citizenship, minority identity, and national sovereignty amidst an environment of fear and tension during the mid 1980s.

The case and its ensuing controversy reflect the threat religious fundamentalism can pose to liberal democracy without the intervention of a uniform civil code. India suffers from a specific brand of communalism that was fostered by British imperialists as a means of weakening the Nationalist Movement by forcing religious rather than national allegiance. Religious identification was a means of mobilizing politically, and the resulting political divide between Hindus and Muslims worsened progressively despite the efforts of Mahatma Gandhi and Jawaharlal Nehru, eventually leading to Partition in 1947.

The Shah Bano controversy was the first of the Rajiv Gandhi government, which came into power following the 1984 assassination of Mrs. Indira Gandhi. What began with a citizen, Shah Bano Begum, utilizing her Fundamental Right to petition the court, became a permeating political dilemma with far-reaching consequences. From India’s beginnings as an independent nation, nationalist leaders like Mahatma Gandhi and Jawaharlal Nehru devoted themselves to the ideals of tolerance, equality, and unity. With Shah Bano, those ideals became contradictory, and the politicization of religion usurped the practice of democratic government by fomenting disunity among the Indian populace. Muslim fundamentalists sacrificed equality to preserve their religious identity.

The meaning of secularism became a struggle between the state’s responsibility to protect the individual, and the preservation of oppressive religious traditions. The unwillingness of the Indian government led by Prime Minister Rajiv Gandhi to enforce the equal rights of Muslim women in the case of Shah Bano represented a monumental failure of government to protect the rights of the individual citizen. Social equality was undermined by religious politics and secularism became a weapon with which Hindus and Muslims alike sought to alter the Indian Constitution. In the aftermath of the Supreme Court judgment in Shah Bano, the maintenance of personal laws served as a rallying point for communal demands, and brought into question the true meaning of the religious tolerance so valued by the founders of Democratic India.

At the time of its adoption in 1949, the purpose of the Indian Constitution was to promote egalitarianism and preserve national unity, while assuaging fears among the Muslims that remained in India following Partition that the government was not Hindu but Indian. Steps were taken to preserve and protect the religious identities of communal groups newly unified under one governing body. Although criminal law in India had been applied uniformly since the 1830s, civil law was left purposely uncodified, and personal laws were sustained to govern individual religious communities.1

Islamic personal law, known as the Shariat, governs marriage, divorce, inheritance, and other family affairs. When the Indian Supreme Court interpreted the Shariat as a means of applying it to their ruling in the Shah Bano case, the subsequent involvement of Muslim fundamentalists, Hindu extremists, and women’s rights activists led to one of the most dangerous political crises India had faced since Partition. The Shah Bano case evoked a tremendous response among almost every citizen of India, and reinforced the principle that secular nations like India cannot allow religious communalism to distort their commitment to democracy.

The Making of a Controversy

The absence of a uniform civil code enabled the political conflagration that became known as the Shah Bano controversy. Although the CrPC (Criminal Procedure Code) was established over a century earlier, personal law remained virtually unchallenged until the 1940s when Prime Minister Jawaharlal Nehru and Law Minister B.R. Ambedkar began pushing for the Hindu Code Bill, and “the reform of personal laws became an acid test of India’s commitment to secularism and modernization.”2 Article 44 of the Indian Constitution described the importance of enacting a civil code for all of India, but only at a time when national unity was more secure.3 The tremendous social and political unrest following Partition meant the civil code was abandoned until Muslims felt less threatened by the perceived power of the Hindu majority, and communal tensions abated.

Nehru and Ambedkar were sympathetic to feelings of vulnerability among Muslims in light of surging communal mobilization among groups seeking to anchor themselves in the bedrock of nationally mandated religious tolerance. Having helped found Democratic India upon principles of tolerance and coexistence as well as national unity, both men understood that “to tamper with what [the Muslims] considered hallowed tradition -the word of God- would make them even less secure.”4

Conservative Muslims opposed the passage of a uniform civil code, arguing that not only was it too progressive, but that because their personal laws were guided by religion, any change affecting personal law was a violation of the religious freedom guaranteed by the decidedly secular Indian Constitution. However, committed to eradicating untouchability and elevating the status of women, Mahatma Gandhi and Jawaharlal Nehru campaigned for the passage of a uniform civil code that would be applicable to Hindus and available to any other religious group on a voluntary basis. The Hindu Code Bill was intended to promote social equality by uniformly applying laws of inheritance, maintenance, inter-caste marriage, divorce, monogamy, and adoption that had traditionally fallen under the purview of personal laws.5

Hindu communal groups, including the Rashtriya Swayamsevak Sangh,∗ established the Anti-Hindu-Code Committee, attacking social progressives like Nehru and Ambedkar for violating Hindu scriptures and interfering with the practice of Hinduism.7 The bill eventually passed in three separate sections in 1954, 1955, and 1956, rather than in its entirety as Nehru had hoped. It did not apply to the Muslim community, where the Shariat continued to guide civil matters. The Indian commitment to secularism thus enabled the Muslim community to limit legislative modernization affecting women, leaving “intact the male option of polygamy and unilateral divorce, both of which have been banned in several Muslim countries but remain legal in India.”8

Muslim women remained oppressed while women of every other religious group, including Hindus, Jains, Sikhs, Christians, Buddhists and all others, acquired all the rights of citizenship. To avoid further alienating the Muslim community, gender equity was subordinated to the commitment to secularism. The Shariat overruled the Indian Constitution in regards to the rights of citizenship for Muslim women, and religious tolerance meant disenfranchisement through the application of personal laws.

Mohammed Ahmed Khan v. Shah Bano Begum and Others

Shah Bano Begum married Mohammad Ahmed Khan in 1932. They produced three sons and two daughters. Mr. Khan took another wife, legally according to Islamic law, with whom he produced additional children. The entire extended family shared a home, from which Mr. Khan expelled Shah Bano in 1975, forcing her to take refuge with one of her adult sons. Shah Bano received maintenance from her husband for two years, after which he claimed he had fulfilled his obligations under Islamic law because according to the fundamentalist interpretation of the Shariat, “the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so.”9

In 1978 Shah Bano petitioned for and was awarded maintenance under India’s CrPC by the Judicial Magistrate of Indore.10 Despite the paltry amount awarded her, 25 Rs per month by the Lower Court, and later 179.2 Rs per month by the High Court, Khan took the case to the Supreme Court, demanding that the relatives of Shah Bano take responsibility for her care.11 Mr. Khan then divorced Shah Bano through the triple-talaq method of unilateral divorce, the least approved method of divorce under Islamic law.12 He proceeded to take the case to the Indian Supreme Court, arguing that the lower court rulings violated his rights as a Muslim by inhibiting his adherence to the Shariat.

Chief Justice Y. V. Chandrachud delivered the opinion of the court, upholding the lower court rulings. Seeking to circumvent a personal law they considered “ruthless in its inequality,” the Supreme Court ruled that Mr. Khan had violated Section 125 of the CrPC, which decrees that “a person who, having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself” can be forced to do so by the court or face a fine and/or imprisonment.13

The court further commented in support of the enactment of a uniform civil code as described in Article 44 of the Indian Constitution, as a means of preventing further contradictions between the Shariat and the Constitution.14 The AIMPLB (All India Muslim Personal Law Board) intervened on behalf of Mohammad Ahmed Khan and took issue with not only the ruling as a violation of their constitutional rights as a religious minority, but also the language regarding Article 44, which they said would subvert the practice of Islam and lead to its eventual disappearance in India.

What should have been a women’s rights issue grew into the focal point of religious antagonism between Hindu and Muslim extremists. Muslim religious leaders issued a proclamation against the judgment as a violation of Islamic law. Chief Justice Chandrachud expressed his belief that “interpretation of law, personal or otherwise, is not only the function but the obligation of the court.”15 Essentially, the government gave women more rights than were acceptable to conservatives within the Muslim community, but even more significant was their desire to mobilize politically against the Hindu majority government. Heightening the tension, “Hindu right-wing parties used secularism to insist on the removal of Muslim privileges and the enactment of a uniform civil code.”16

The issue went beyond the question of what was good for Shah Bano, or even for the Muslim community, and became a question of what would benefit the few politicians who were willing to sacrifice Nehruvian ideals to increase their political power. Having attempted to “cut across the barriers of religion” by applying a secular law to Shah Bano’s plea, the Supreme Court drew criticism from fundamentalist Muslims for contradicting the Shariat.17 Article 125 of the CrPC was frequently utilized by the court to rescue “needy divorcees, rendered homeless, from moral danger and from resorting to a means of livelihood contrary to peace, tranquility and social health.”18 The AIMPLB argued that application of the CrPC to force Muslim men to pay maintenance to their wives interfered with the practice of Islam, and yet according to the courts interpretation, the Qu’ran dictates binding obligations upon men regarding treatment of former wives.19 The court took steps to justify their ruling to Muslims concerned with their adherence to the Shariat and in doing so became susceptible to cries of violating India’s secular tradition.

When communal identity is defined by religious traditions, social transformation that affects religion is seen as a threat to that identity, and thus evokes an emotional response. Rather than remaining a question of Shah Bano’s demand for maintenance, the case became a battle to protect the Muslim identity from what fundamentalists considered “the Hindu’s homogenizing influence.”20 In addition to the broader argument between right-wing Hindus and Muslim fundamentalists, the Shah Bano case wrought divisions within the Muslim community. Despite their claim to speak for all Muslims, the AIMPLB represented only the extremists, polarizing moderates and progressives. Women’s groups like the NIWF (National Indian Women’s Federation) and AIDWA (All India Democratic Women’s Association) spoke out in favor of the judgment as a progressive step toward equality for Muslim women.21

The involvement of Hindu communalists acted as a counter-productive catalyst, invoking fear in the Muslim community. The treatment of women became a distinguishing factor to promote communal solidarity, and their fears of losing religious identity drove some in the Muslim community to oppose the judgment. Extremists on all sides of the issue re-oriented themselves around religious ideals as a means of garnering political strength, and morality and social welfare took a backseat to religious politics. “Tempted by its political utility, religion [fell] into the trap of communalism” and national identity was a casualty of communal demands.22 Shah Bano was not the first woman to go to the courts and demand maintenance based upon the CrPC. The case became controversial with the political opportunism of the AIMPLB and the Hindu right wing. Religion became a weapon both exploitative and divisive used to dismantle India’s democracy.Continued on Next Page »